1. This appeal is directed against the order of Mr. S.C. Sen. Subordinate Judge of Nadia, dated 29th April 1939, by which he refused to re-open certain execution, proceedings on the ground that an order had been passed in these proceedings, namely Execution Case No. 159 of 1937, that the decree had been fully satisfied. Admittedly, the order in question was based on a mistake. It appears that in a previous Execution Case No. 242 of 1936, the sum of Rs. 1000 had been paid by one of the judgment-debtors to the pleader for the decree-holders who accordingly entered part satisfaction in respect of this payment in the execution case. Thereafter the agent of judgment-debtor 18 told the pleader for the' decree-holders that the execution case had actually been dismissed for default and the pleader relying on this statement entered satisfaction to the extent of Rs. 1000 in the suit. It subsequently transpired that Execution Case No. 242 of 1936 had not in fact been dismissed for default. The result was that, when the requisite entries were made in the suit register, these entries indicated that on 16th January 1937 the sum of Es, 2000 had been paid towards the satisfaction of the decree. On a subsequent date, the decree-holders again put their decree into execution in Execution Case No. 159 of 1937 and before doing so they applied to the office for information as to the extent to which the decree had been satisfied. The information which was supplied to them was admittedly based on the erroneous entries which had been made in the suit register, which gave the judgment-debtors credit for a sum of Rs. 1000 in excess of that to which they were entitled. In due course in the proceedings in Execution Case No. 159 of 1937 various payments were made by the judgment-debtors, which resulted in the execution case being dismissed on full satisfaction. It is clear that the judgment-debtors would not have been entitled to this order in the execution case but for the mistake which had resulted in the credit to them of a sum of Rs. 1000 which in fact they had not paid on 16th January 1937.
2. It is contended on behalf of the judgment-debtors that the Court was functus officio after having dismissed Execution Case No. 159 of 1937 on full satisfaction, and that consequently the decree-holders are not entitled to have their execution proceedings reopened as they should have discovered at the time of filing their application for execution that there was an erroneous entry in the execution column of the suit register, and, in this connexion, we have been referred to a decision of this Court in Dwijendra Krishna Dutt v. Kedar Nath Poddar : AIR1929Cal670 . We are not prepared to accept this argument. The case cited above is clearly distinguishable on its facts. In that case, as pointed out in the judgment, the sole ground upon which the decree-holder sought to re-open the proceedings was that there was a mistake which must have been due to his own negligence or negligence of his own agents. In the present case, on the other hand, the pleader of the decree-holders was clearly misled by the agent of one of the judgment-debtors. Further, it is clear that the mistake which occurred on 16th January 1937 was continued in the entry made in the execution column of the suit register upon which the information was based which was subsequently obtained by the decree-holders before they filed their application for execution in Case No. 159 of 1937. In my view, it would not be proper to allow the judgment-debtors to take advantage of a mistake of this nature and I do not think that the order of the learned Subordinate Judge can be supported. We, therefore, allow this appeal with costs. The order of the Court below in so far as the learned Judge refused to re-open Execution Case No. 159 of 1937 is set aside and it is directed that the decree-holders be at liberty to continue the execution proceedings. The appellants are entitled to their costs in this appeal. The hearing fee is assessed at one gold mohur.
3. I agree.